FAIR USE: Music Sampling

IVAN HOFFMAN, B.A., J.D.

There is no fixed amount
of permitted usage that is set forth in the fair use statute and the cases
do not define any fixed amount of usage. For those who continue to
believe in the absolutely false and incorrect belief that there is any
fixed amount of usage that will be acceptable under the fair use doctrine
(read the numerous articles on my site dealing with fair use but especially
“Fair
Use: Further, Further Issues.” Click on “Articles
for Writers and Publishers”), a case from the Sixth Circuit should
give you nightmares.

In Bridgeport Music,
Inc. et. al. vs. Dimension Films et. al., the Court found that the
use of 3 notes, lasting 2 seconds, from a sound recording called
“Get Off Your Ass and Jam” (“Get Off” in the opinion) in the track called
“100 Miles and Runnin” (“100 Miles” in the opinion) contained in the sound
track of a motion picture called “I Got the Hook Up” (“Hook Up” in the
opinion) was not fair use. In the words of the Court:

Westbound’s claims are for infringement of the sound
recording “Get Off.” [footnote omitted] Because defendant does not
deny it, we assume that the sound track of Hook Up used portions of “100
Miles” that included the allegedly infringing sample from “Get Off.” The
recording “Get Off” opens with a three-note combination solo guitar “riff”
that lasts four seconds. According to one of plaintiffs’ experts, Randy
Kling, the recording “100 Miles” contains a sample from that guitar solo.
Specifically, a two-second sample from the guitar solo was copied, the
pitch was lowered, and the copied piece was “looped” and extended to 16
beats. Kling states that this sample appears in the sound recording “100
Miles” in five places; specifically, at 0:49, 1:52, 2:29, 3:20 and 3:46.
By the district court’s estimation, each looped segment lasted approximately
7 seconds.

The Court summarized the
basis for the trial court’s decision that there was no likelihood that
the plaintiff would prevail on their claim of copyright infringement.

In granting summary judgment to defendant, the district
court looked to general de minimis principles and emphasized the paucity
of case law on the issue of whether digital sampling amounts to copyright
infringement. Drawing on both the quantitative/qualitative and “fragmented
literal similarity” approaches, the district court found the de minimis
analysis was a derivation of the substantial similarity element when a
defendant claims that the literal copying of a small and insignificant
portion of the copyrighted work should be allowed. After listening to the
copied segment, the sample, and both songs, the district court found that
no reasonable juror, even one familiar with the works of George Clinton,
would recognize the source of the sample without having been told of its
source. This finding, coupled with findings concerning the quantitatively
small amount of copying involved and the lack of qualitative similarity
between the works, led the district court to conclude that Westbound could
not prevail on its claims for copyright infringement of the sound recording

Westbound does not challenge the district court’s characterization
of either the segment copied from “Get Off” or the sample that appears
in “100 Miles.” Nor does Westbound argue that there is some genuine dispute
as to any material fact concerning the nature of the protected material
in the two works. The heart of Westbound’s arguments is the claim that
no substantial similarity or de minimis inquiry should be undertaken at
all when the defendant has not disputed that it digitally sampled a copyrighted
sound recording. We agree and accordingly must reverse the grant of summary
judgment. [emphasis added]

In other words, the appellate
Court found that the standard that might otherwise be applied in determining
whether a use was a fair use, a standard that looked to the quantity of
material taken from the protected work, was not applicable to the taking
of material from a protected sound recording. Keep in mind that whenever
there is a use of a sound recording, if both the sound recording and the
musical composition recorded on the sound recording are protected by copyright,
there are 2 sets of rights that have to be determined. (Read “The
Use of Music On A Multimedia Web Site.”) In this case, the composition
had been licensed.

The Court took care to
state that this was a case of a claimed infringement of a sound recording,
which is a different standard than a case involving the claimed infringement
of a musical composition. The Court stated:

1. The analysis that is appropriate for determining infringement
of a musical composition copyright, is not the analysis that is to be applied
to determine infringement of a sound recording. We address this issue only
as it pertains to sound recording copyrights. [footnote omitted]…5. Because of the court’s [i.e. the trial court] limited technological
knowledge in this specialized field, our opinion is limited to an instance
of digital sampling of a sound recording protected by a valid copyright.
If
by analogy it is possible to extend our analysis to other forms of sampling,
we leave it to others to do so.[emphasis added].…7. The music industry, as well as the courts, are best served
if something approximating a bright-line test can be established. Not necessarily
a “one size fits all” test, but one that, at least, adds clarity to what
constitutes actionable infringement with regard to the digital sampling
of copyrighted sound recordings.

In a footnote, the Court
stated:

“In most copyright actions, the issue is whether the
infringing work is substantially similar to the original work. . . . The
scope of inquiry is much narrower when the work in question is a sound
recording. The only issue is whether the actual sound recording has been
used without authorization. Substantial similarity is not an issue . .
. .” Bradley C. Rosen, Esq., 22 CAUSES OF ACTION § 12 (2d ed. 2003).

The Court quoted the provisions
of section 114 (b) of the copyright law, which contains some specific limitations
on the rights of copyright in sound recordings. (A “phonorecord”
is a sound recording in copyright law language.)

Section 114(b) states:

(b) The exclusive right of the owner of copyright in
a sound recording under clause (1) of section 106 is limited to the right
to duplicate the sound recording in the form of phonorecords or copies
that directly or indirectly recapture the actual sounds fixed in the recording.
The exclusive right of the owner of copyright in a sound recording under
clause (2) of section 106 is limited to the right to prepare a derivative
work in which the actual sounds fixed in the sound recording are rearranged,
remixed, or otherwise altered in sequence or quality. The exclusive rights
of the owner of copyright in a sound recording under clauses (1) and (2)
of section 106 do not extend to the making or duplication of another sound
recording that consists entirely of an independent fixation of other sounds,
even though such sounds imitate or simulate those in the copyrighted sound
recording. [emphases added. Balance of quote omitted as not relevant
to the within article.]

The Court went on to state:

Section 114(b) provides that “[t]he exclusive right of
the owner of copyright in a sound recording under clause (2) of section
106 is limited to the right to prepare a derivative work in which the actual
sounds fixed in the sound recording are rearranged, remixed, or otherwise
altered in sequence or quality.” In other words, a sound recording owner
has the exclusive right to “sample” his own recording. We find much to
recommend this interpretation. [footnote omitted]

To begin with, there is ease of enforcement. Get a license
or do not sample.[emphasis added] We do not see this as stifling
creativity in any significant way. It must be remembered that if an artist
wants to incorporate a “riff” from another work in his or her recording,
he is free to duplicate the sound of that “riff” in the studio. Second,
the market will control the license price and keep it within bounds. [footnote
omitted] The sound recording copyright holder cannot exact a license
fee greater than what it would cost the person seeking the license to just
duplicate the sample in the course of making the new recording. Third,
sampling is never accidental. It is not like the case of a composer who
has a melody in his head, perhaps not even realizing that the reason he
hears this melody is that it is the work of another which he had heard
before. When you sample a sound recording you know you are taking another’s
work product.

This analysis admittedly raises the question of why one should,
without infringing, be able to take three notes from a musical composition,
for example, but not three notes by way of sampling from a sound recording.
Why is there no de minimis taking or why should substantial similarity
not enter the equation. [footnote omitted] Our first answer to this
question is what we have earlier indicated. We think this result is dictated
by the applicable statute. Second, even when a small part of a sound recording
is sampled, the part taken is something of value. [footnote omitted]
No further proof of that is necessary than the fact that the producer of
the record or the artist on the record intentionally sampled because it
would (1) save costs, or (2) add something to the new recording, or (3)
both. For the sound recording copyright holder, it is not the “song” but
the sounds that are fixed in the medium of his choice. When those sounds
are sampled they are taken directly from that fixed medium. It is a physical
taking rather than an intellectual one.

The Court, in a footnote,
further explained the reasons for treating sound recordings differently
than the underlying compositions. The Court stated in part:

It has been suggested that the strong protection implied
by the foregoing provisions could be mitigated by a judicially applied
standard which permits some degree of de minimis copying or copying where
the sampled portion of the resulting work is not substantially similar
to the copied work. For example, a court could determine that the taking
of a millisecond of sound from another’s copyrighted recording, or the
taking of a more extensive portion that has been modified to the point
of being completely unrecognizable or impossible to associate with the
copied recording, does not constitute infringement. It is believed, however,
that the courts should take what appears to be a rare opportunity to follow
a “bright line” rule specifically mandated by Congress. This would result
in a substantial reduction of litigation costs and uncertainty attending
disputes over sampling infringement of sound recordings and would promote
a faster resolution of these disputes. AL KOHN & BOB KOHN, KOHN
ON MUSIC LICENSING 1486-87 (Aspen Law & Business 3d ed. 2002) (footnotes
omitted).

The Court recognized that
it was creating a new rule, one without judicial precedent. The Court
stated:

Finally, and unfortunately, there is no Rosetta stone
for the interpretation of the copyright statute. We have taken a “literal
reading” approach. The legislative history is of little help because digital
sampling wasn’t being done in 1971. If this is not what Congress intended
or is not what they would intend now, it is easy enough for the record
industry, as they have done in the past, to go back to Congress for a clarification
or change in the law. This is the best place for the change to be made,
rather than in the courts, because as this case demonstrates, the court
is never aware of much more than the tip of the iceberg. To properly sort
out this type of problem with its complex technical and business overtones,
one needs the type of investigative resources as well as the ability to
hold hearings that is possessed by Congress.

Note: other portions of the
opinion are not included in this article since those portions relate to
non-fair use issues.

Conclusion

As with all fair use discussions,
the position you take depends on your relationship to the transaction.
In other words, are you a user of other parties’ rights or are you the
other party? The Court stated in part:

It is also not surprising that the viewpoint expressed
in a number of these articles appears driven by whose ox is being gored.
As is so often the case, where one stands depends on where one sits. For
example, the sound recording copyright holders favor this interpretation
as do the studio musicians and their labor organization. On the other hand,
many of the hip hop artists may view this rule as stifling creativity.
The record companies and performing artists are not all of one mind, however,
since in many instances, today’s sampler is tomorrow’s samplee. The incidence
of “live and let live” has been relatively high, which explains why so
many instances of sampling go unprotested and why so many sampling controversies
have been settled.

Fair use is troubling to
those who are uncomfortable with lack of certainty since fair use requires
a case by case analysis. If you are seeking a bright line rule, then
it should be to never rely on fair use since to do so is legally
very uncertain and there is virtually no way to tell, in advance, whether
any particular use is going to be upheld as a fair use. Always
seek a license. And this applies to all uses of protected materials,
not merely sound recordings.

This article is not legal advice and is not intended as legal advice.
This article is intended to provide only general, non-specific legal information.
This article is not intended to cover all the issues related to the topic
discussed. The specific facts that apply to your matter may make
the outcome different than would be anticipated by you. This article
is based on United States law. You should consult with an attorney
familiar with the issues and the laws of your country. This article
does not create any attorney client relationship and is not a solicitation.

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